Per Justice Sham Sunder , President This appeal is directed against the order dated 22.12.2010 rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint and directed OP No.1 as under ; (a) refund the entire amount deposited by the complainant i.e. Rs.2,55,771/-. No deduction of the statutory charges for cancellation have to be borne by him either. (b) pay Rs.15,000/- as damages to the complainant for the harassment caused to him, and Rs.5,000/- as costs of litigation. (c) OP No.1 was directed to pay the amount aforesaid within 30 days from the date of receipt of a copy of the order, failing which to pay the entire amount with interest @ 12% P.A. from the date of order till actual payment. 2. The facts, in brief, are that the complainant (now respondent No.1), who was working as Manager in NABARD, Chandigarh, booked one LTC tour through OP No.1 for Chandigarh-Delhi-Chennai-Port Blair-Chennai-Delhi from 22.1.2010 to 27.1.2010, for himself, Preeti Sharma and Varun Sharma. A cheque of Rs.2,55,771/- dated 8.12.2009 for booking the tickets, was given to OP No.1, which was duly encashed by it. In lieu of payment of the aforesaid amount, OP No.1 issued an internet printout of the tickets of Kingfisher Airlines. It was stated that, to the utter surprise of the complainant, OP No.1 later on cancelled the tickets. When the complainant contacted OP-1(appellant), it assured him, that he would get an equivalent package from Indian Airlines, in lieu of the cancelled tickets, for which, he (complainant) gave his consent. It was further stated that OP-1 never gave any booking slips. The complainant himself obtained the booking slips from the Indian Airlines office at Chandigarh. He came to know that the booked tickets had cost Rs.1,46,325/-. When the complainant enquired about the excess balance amount of Rs.1,09,446/- from OP-1, it neither gave satisfactory reply, nor refunded the amount. It was further stated that thereafter, the complainant sent letter dated 18.1.2010 to OP-1 and requested for cancellation of the tickets and sought the refund of the tickets amount to the tune of Rs.2,55,771/-, by deducting cancellation charges as per rules, but it (OP-1) did not pay any heed to his requests. Even a legal notice dated 4.2.2010 was served upon OP No.1, by the complainant, but to no avail. It was further stated that the aforesaid acts of OP No.1, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act,1986 (hereinafter to be called as the Act only) was filed. 3.. OP-1 refused to accept the service of notice for 27.7.10, as per the report of the process server dated 15.7.10. None appeared on behalf of OP No.1. The District Forum, thus, recorded OP Nos.1 & 2, in its order, dated 27.7.10, as ex parte. 4.. OP No.2 did not appear despite service, as a result whereof, it was also proceeded against ex parte. 5. In the written reply, filed by OP No.3, it was denied that it received any payment from the complainant. It was stated that on 10.12.2009 OP NO.1, the agent of the complainant created PNRs on its reservation system for travel from 22.1.2010 to 27.1.2010, but the process of booking confirmed tickets is only complete when the passenger/his travel agent makes the payment and a confirmed ticket is issued by the concerned airlines. It was further stated that mere creation of PNR by the agent, on the system, did not entitle the passenger to avail of services of the said airlines. It was further stated that there was no question of cancellation of the tickets as the same were never booked. It was denied that there was any deficiency, in service, on the part of OP No.3 or it indulged into unfair trade practice. The remaining allegations were denied, being wrong. 6. OP No.4, in its separate written reply, stated that the allegations levelled by the complainant were only against OP No.1 and not against it. It was, however, stated that the complainant could not avail of the LTC because he himself cancelled his bookings, vide communication dated 18.1.2010. It was further stated that there was no deficiency, in service, on the part of OP NO.4, nor it indulged into unfair trade practice. The remaining allegations were denied, being wrong. 7. The parties led evidence, in support of their case. 8 After hearing the Counsel for the parties, and, on going through the evidence, on record, the District Forum, accepted the complaint against OP No.1 , in the manner, referred to, in the opening para of the instant order. 9 Feeling aggrieved, the instant appeal, has been filed, by the appellant/OP No.1, after a delay of 214 days, as per the office report, without moving an application, for condonation of the same. 10. We have heard the Counsel for the appellant, and have gone through the evidence and record of the case, carefully. 11. The Counsel for the appellant, submitted that, OP No.1 was not served with the impugned order, as it was ex parte, in the District Forum. He further submitted that, as soon as, the appellant came to know of the impugned order, it filed the appeal. He further submitted that, as such, the period of limitation, for filing the appeal, started running from the date of knowledge of the appellant, in respect of the impugned order, and if that date be taken into consideration, then there was no delay, in filing the appeal. He further submitted that even, in the complaint, in the District Forum, OP No.1/appellant was not duly served. He further submitted that no representative of OP No.1/appellant made refusal to receive notice sent by the District Forum. He further submitted that since, there was no due service, of the duly authorized representative of OP No.1/appellant, it was, wrongly proceeded against ex parte. He further submitted that, as such, OP No.1 was condemned unheard. He, however, submitted that a cheque in the sum of Rs.2,55,771/- had been given by the complainant, to OP No.1. He further submitted that after receipt of payment, the appellant had given an itinerary of Kingfisher Airlines to the complainant. He further submitted that the LTC was approved on Indian Airlines by the Government. The complainant told the appellant that he had got no approval from his office/department for traveling in the said airlines, and, as such, the booking of Kingfisher Airlines was got cancelled. He further submitted that, in the meanwhile, the complainant took cash of Rs.52,500/- each for three members, total amounting to Rs.1,57,500/- from OP No.1. He further submitted that OP No.1 had booked the tickets of the complainant on Air India flight which was costlier than Kingfisher Airlines. It was further submitted that, thus, the appellant had paid the excess amount for the tickets of Air India, from its own pocket. He further submitted that the District Forum was wrong, in coming to the conclusion, that there was deficiency, in service on the part of OP No.1. It was further submitted that the order of the District Forum, being illegal, is liable to be set aside. 12. The first question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 214 days, in filing the appeal, as reported by the office. No separate application for condonation of delay was filed by the appellant. However, in the grounds of appeal, it was stated that no due service of OP No.1/appellant was effected, and, as such, as soon as, it came to know of the impugned order, it filed the appeal and ,thus, it could not be said that there was any delay. The submission of the Counsel for the appellant does not appear to be correct. In the District Forum, OP No.1/appellant was ex parte, as its representative refused to accept the service of summons. When a copy of the impugned order was sent to OP NO.1 (now appellant), a report was made on 29.12.2010 by the Process Server that he went to the address of OP No.1 and he was told that the boss was not present, and, as such, copy of the impugned order was not accepted. It amounted to refusal. It, therefore, cannot be said that the OP (now appellant) did not come to know of the impugned order dated 22.12.2010, on 29.12.2010 when the Process Server went to effect service of the same upon it. There is no reason to disbelieve the report of the Process Server, as indicated above. Under these circumstances, the submission of the Counsel for the appellant, that, as soon as, the appellant came to know of the impugned order, it filed the appeal, cannot be taken to be correct. An appeal could be filed within a period of 30 days, from the date of receipt of a copy of the order. As per office report, there was a delay of 214 days i.e. 7 months and 4 days beyond the normal period, stipulated for filing an appeal, against the order of the District Forum. There was complete inaction and lack of bonafides, on the part of the appellant, in filing the appeal, in time. Had the appellant been diligent and vigilant enough, it would have filed the appeal within the stipulated period of 30 days, from the date, when it refused to accept service of the impugned order. There is, thus, no sufficient cause for condonation of delay of 214 days, in filing the appeal. The appeal, is, therefore, barred by time. 13. Now coming to the appeal, on merits, it may be stated here, that the same is liable to be dismissed, for the reasons, to be recorded hereinafter. It was admitted by OP No.1/appellant that a sum of Rs.2,55,771/- through cheque No.384805 was received by it, from the complainant. Copies of the invoice dated 11.12.2009 is C-1, receipt dated 10.12.2009 is annexure C-2, and the statement of account of the Axis Bank is C-3. No doubt, internet printout C-4(colly.)of the tickets of Kingfisher Airlines bearing confirmation for the Chandigarh-Delhi-Chennai-Port Blair-Chennai-Delhi sector from 22.1.2010 to 27.1.2010, in the name of the complainant, as well as in the name of his family members, was issued by OP No.1/appellant. Later on, OP NO.1 cancelled the booking on its own, and, on the other hand, booked the tickets for the complainant and his family members in the Indian Airlines which cost Rs.1,46,325/-, but it did not refund the balance amount. Even this journey was not undertaken by the complainant, and his family members, and the booking was got cancelled. Under these circumstances, it was the duty of OP No.1/appellant, to refund the amount of tickets, which was paid to it, by the complainant vide the aforesaid cheque. On the other hand, despite repeated requests and reminders, OP NO.1/appellant failed to refund the amount. When a legal notice was given to OP NO.1/appellant, it again did not respond to the same. Not only this, even in the District Forum, OP NO.1/appellant did not appear, but, on the other hand, the envelope containing the notice alongwith documents, which were sent in it, for service, was received back refused. Refusal, being due service, OP NO.1 was rightly proceeded against ex parte. It means that OP NO.1 very well knew of the pendency of the complaint, against it, but it tried to put off the matter, on one pretext or the other, and failed to refund the amount, which had been paid to it, vide the cheque, aforesaid. The District Forum was, thus, right in holding that by not refunding the amount, which was paid by the complainant to OP NO.1/appellant, it was deficient, in rendering service. The findings of the District Forum, in this regard, being correct, are affirmed. 14. No doubt, a plea was taken by the Counsel for the appellant, that a sum of Rs.1,57,500/- was refunded, in cash, to the complainant, yet such a submission does not appear to be correct. It cannot be imagined that when the amount for the tickets, was paid by the complainant, through cheque, the OP would return a part of the same, in cash. Even, no proof that the part amount was returned, in cash, was produced. No receipt, alleged to have been issued by the complainant, after alleged refund of part amount to him, was also produced. Alongwith appeal, a copy of an email was produced showing the refund of amount of Rs.52,500/- per person. However, no reliance on this copy of the email could be placed as the same could be fabricated. The plea taken up by the appellant, to the effect, that a part of the amount was refunded in cash to the complainant , being without merit, stands rejected. 15. The order passed by the District Forum does not suffer from any illegality or perversity, warranting the interference of this Commission. 16. For the reasons recorded above, the appeal is dismissed, at the preliminary stage, being barred by time, as also devoid of merit, with costs, quantified at Rs.5000/-. 17. Certified Copies of this order be sent to the parties, free of charge. 18. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
